Grand-jury subpoenas can demand records or testimony

Getting served with a federal grand jury subpoena can be an anxiety-producing experience.

Such subpoenas are issued by prosecutors at the outset of a criminal investigation or near the end, depending on whether the probe is covert. They often are delivered to a person’s home or office by an FBI agent and command a witness to testify, produce documents, or both.

The recipient must comply by testifying or turning over the requested records and papers by a specified date unless the individual has a valid privilege to assert.

If called to testify, a person may invoke the Fifth Amendment right against self-incrimination, or assert the attorney-client, doctor-patient or priest-penitent privileges, if those apply, and move to quash the subpoena. A judge, in a secret proceeding, would then decide whether to compel the testimony.

While every person can invoke the Fifth Amendment privilege, an entity — with the exception of a sole proprietorship — does not have that right and would have to surrender any subpoenaed documents except communications covered by the attorney-client privilege. But the entity would have to release enough information about such privileged communications — such as who sent, received or saw a document, its date, and generally what it was about — so the government could challenge the assertion of the privilege.

Contesting a demand for documents, data or objects on other grounds is often an uphill battle. A party must show that compliance with the subpoena would be “unreasonable or oppressive” because the information sought is irrelevant, overly broad or too burdensome to produce.

Grand jury subpoenas are similar to those issued by a legislative body in the sense that both are used to compel testimony or production of documents and carry the force of law. The big difference is that grand jury matters are by law required to be kept secret, so the testimony and documents produced are not made public unless they are later used at a criminal trial.

In many federal districts, including New Jersey, grand jury subpoenas are served without a judge’s review and courts typically do not examine them unless a legal challenge is raised.

Failure to comply with a grand jury subpoena can result in a person’s confinement for as long as the grand jury sits.